Chair of defence

Supervisors

Dr.jur. Gro Nystuen

Summary

Conduct of Hostilities under International Humanitarian Law outside of Interstate Armed Conflicts.

There is a firm tradition under international law for regulating hostilities conducted between two or more States. Over the past 30 years it has been confirmed that humanitarian law also applies to conduct of hostilities where at least one of the parties to a conflict is not a (nominal) state actor. The dissertation inquires whether the rules of conduct of hostilities under international humanitarian law for non-international armed conflict differ from the rules applicable to conduct of hostilities between two or more States. These rules are relevant for a range of different situations, such as the US drone-campaigns in Afghanistan and Yemen, hostilities between the parties to the civil war in Syria, military operations in Ukraine, and Norwegian soldiers when engaged in combat.

The law of armed conflict (humanitarian law) contains two main categories of rules – rules for the protection of victims of war, and rules for conduct of hostilities. The latter is the subject of the dissertation. These rules define the distinction between civilians and belligerents, and they determine what means and methods are prohibited during conduct of hostilities. Legal developments over the past decades have established that also the latter set of rules apply to non-international armed conflict, where at least one party to the conflict is a non-state actor. There is, however, considerable disagreement with regard to how the precise content of these rules may be determined, and the conditions under which they apply.

The dissertation questions whether these rules correspond to those applicable to conduct of hostilities between two or more states, or if there is a proper regime for conduct of hostilities under non-international armed conflicts. The main argument (or finding) of the dissertation is that the rules of humanitarian law for conduct of hostilities must be adjusted to the legal realities of non-international armed conflicts in order to have their intended effects. The rules therefore ought to be refined. The dissertation suggests a methodological approach to treaty provisions that may assist in such refinement. A review of relevant treaty-provisions leads to the conclusion that there are two distinct regimes for conduct of hostilities for non-international armed conflict that both differ from the regime applicable in interstate armed conflict. The dissertation also indicates their scope of applicability.

The conclusions and models proposed by the dissertation largely correspond to historical approaches to the subject, and they incorporate a set of important modern considerations. The dissertation indicates that the main conclusion is reflected in treaty provisions of humanitarian law. However, the approach taken departs from current trends in literature and certain developments in practice. The approach adopted lead to concrete results that may have implications for the relationship between humanitarian law and human rights in such conflicts. The most important conclusion of the dissertation is that there are two different regimes for conduct of hostilities in non-international armed conflict that are both distinguished from rules applicable for conduct of hostilities between states. It is in the transition between these two regimes that humanitarian law changes pace, since it is suggested that only one of the regimes may rely on the ordinary distinction between civilians and belligerents as limits to the use of force.